Failure to properly perform surgery

Presentation
A 45-year-old woman came to her ob-gyn for complaints of heavy bleeding and pelvic pain. The patient’s history included pelvic inflammatory disease, a bilateral tubal ligation, and myomectomy. Through the aid of an ultrasound and MRI, large uterine fibroids were diagnosed, and the patient was scheduled to undergo a total abdominal hysterectomy with bilateral salpingo-oophrectomy. The patient was a Jehovah’s Witness, and did not consent to the use of blood products during her surgery.

Physician action
The physician started the patient on preoperative progesterone in an effort to control the bleeding. The physician took the patient to surgery, where she encountered several extensive pelvic adhesions. The surgery was so difficult that the physician enlisted the aid of a colorectal surgeon and urologist to help identify and avoid damaging other structures. Tissues that were removed were sent to pathology for inspection. The physician dictated the operative report more than two months after the surgery.

During the surgery, there was excessive blood loss of approximately 800 cc, and the patient continued to refuse blood products. Postoperatively the patient experienced a decline in hematocrit and hemoglobin levels. Iron supplementation and epoetin alfa injections were administered and the patient’s levels increased. She was discharged from the hospital five days after surgery. The discharge summary was dictated more than two months following the discharge date.

Two days following her discharge, the patient returned to the emergency room with shortness of breath. Her hematocrit and hemoglobin levels were once again very low. The patient was advised that an emergency blood transfusion was necessary as a life-saving measure and she consented to a blood transfusion despite her religious beliefs. The patient was discharged from the hospital four days later.

The patient continued to see the ob-gyn following the surgery with continued complaints of abdominal pain. A sonogram performed two months after the surgery revealed the left ovary was still present and contained a complex cyst. A pathology report dated the day after the surgery noted that the specimen labeled “uterus, cervix, bilateral ovaries” only contained one ovary. The report was stamped with the ob-gyn’s signature and placed in the patient’s file. The ob-gyn offered to remove the retained ovary but the patient declined, citing the recent loss of her health insurance. The patient was eventually lost to follow up.

Allegations
A lawsuit was filed against the ob-gyn. The allegations included:

failure to properly perform surgery, with neglect to identify biopsy specimens that were removed during surgery;

failure to document the surgical procedures performed; and

failure to keep accurate records and reports regarding the patient’s treatment and condition.

Legal implications
The ob-gyn’s operative report was the most difficult challenge in defending the lawsuit. The report was dictated more than two months after the procedure and after the retained left ovary was discovered. In addition to being late, the report was confusing and contained many inconsistencies and contradictions. The report first spoke of the ovaries being identified and removed, and later spoke of the ovaries being in place and appearing “good.”

During her deposition, the physician had to acknowledge that her dictation was very late, and was not able to explain the discrepancies in the report. She was also not able to positively state if she had seen the pathology report.

The plaintiff’s experts were critical that the intended surgery was not performed and that the ob-gyn did not properly identify both ovaries. They were critical of the incorrect operative report and felt that the pathology report stating only one ovary was found was not properly acknowledged.

The consultants who reviewed the case for the defense were also generally critical and felt that the documentation inaccuracies were due to the delay in dictation. They stated that it appeared the physician had not reviewed the pathology report at all, based on the lack of documentation in the chart. They were supportive of the physician’s decision to bring in other surgeons to assist when she discovered the complexity and severity of pelvic adhesions.

Disposition
After a lengthy litigation process, the case was taken to trial. The plaintiff’s attorney did not claim any economic damages and brought the case solely for pain and suffering. After a four-day trial, the jury returned a verdict in favor of the defense.

Risk management considerations
It is important to dictate operative reports in a timely manner while the events of the surgery are more easily and accurately recalled. Having the dictation on file eliminates accusations that the future events affected what is dictated in the operative report.

Operative reports should be reviewed carefully for errors before being signed as final. Contradictory information in the report causes confusion to the reader and could discredit the physician’s accuracy on what was actually performed.

It is advisable for physicians to physically sign and date each pathology and lab report. This practice proves that the physician actually saw the report in a timely fashion, and reduces the risk of abnormal lab results being misfiled into a patient’s chart without the physician being made aware of the results. It is further suggested that a policy to track pending lab results be instituted within the physician’s practice to ensure that all results are received and reviewed prior to a patient’s return visit.

These closed claim studies are based on an actual malpractice claims from TMLT. These cases illustrates how action or inaction on the part of physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. These studies have been modified to protect the privacy of the physicians and patients.

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